June 26, 2013

In United States v. Windsor, the Supreme Court finds that DOMA "violates basic due process and equal protection principles applicable to the Federal Government." (The constitutional text is the 5th Amendment which only says "due process," but the Court has long viewed "equal protection," which is explicit in the 14th Amendment, as implicit in the 5th Amendment.) Justice Kennedy writes for the majority:

The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528–535 (1973).

The unpopular group to be harmed in Moreno was hippies. To understand the scourge of hippies as it was seen at the time, I highly recommend this 1971 NYT article: "Ripping Off, The New Life Style" (citing the Jefferson Airplane lyric "All your private property is target for your enemy/And your enemy is/We-e-e"). Congress was hoping to keep food stamps away from hippies, and that didn't cut it.

So is keeping marriage away from gay people no better than denying food stamps to hippies?

In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an unusual character’ ” especially require careful consideration. Supra, at 19 (quoting Romer... at 633).

How is excluding gay people from marriage unusual? It's an old tradition. What's unusual is Congress horning in on an area of traditional state regulation:

DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.

And there's "strong evidence" that DOMA had "the purpose and effect of disapproval" of same-sex couples.

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

That language about "stigma" and "a separate status" should be useful in challenging state law that creates "civil unions" for gay people, though the problem in Windsor was only about the federal government's refusal to recognize marriages that the states had validated.

... DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects... and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive....

Ultimately, the Court finds "no legitimate purpose" — only "the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." Again, it's hard to see why the states' willingness to dignify these relationships is essential, but that's the question before the Court today. I don't think, in the end, that this is really very much about federalism, except as a steppingstone. This is a case about rights. Even though there's no heightening of the level of scrutiny, the Court aggressively characterizes the government's purported legitimate interests from the rights claimants' point of view and sees nothing but disparagement, denigration, and stigma.

ADDED: I'm just getting to the Scalia dissent saying the Kennedy opinion may "initially fool[] many readers... into thinking that this is a federalism opinion" and seeing no "point" in the long discussion of state power to define marriage other than — he guesses — to make a "pretense" that this case is only about limiting the federal government and "leaving the second, state-law shoe to be dropped later, maybe next Term." I said "steppingstone." Hopping across a stream, taking off shoes... the point is the same. It's a case about rights.

121 comments:

DOMA was Willie's idea, the same Willie who told the queers in LA in '92, "Ah have a vision ofah this country, and y'all are part of that vision", and passed while L'Affaire Monica was raging to make him seem like more of a family man.

Althouse says: "I don't think, in the end, that this is really very much about federalism, except as a steppingstone. This is a case about rights."

SCOTUS thinks it's about individual rights, and in that sense might not implicate dfederalism directly, but SCOTUS also identifies states' rights as well -- "DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition."

Federalism is a significant part of what drove the court to do what it did. I like to see the liberal members of SCOTUS sign onto an opinion that grants due regard for the rights of states to be 'laboratories of democracy.' Now let's see if they will give due regard for state laws that refuse to grant gays the right to marry. That will be the test to see if federalism has much to do with it.

Only if you are completely ignorant of why DOMA was proposed in the first place: It was expected that a state court would legalize gay marriage and full faith and credit would thus force all other states to recognize such unions.

I am so discouraged. Pogo and Eric and many others and I are wondering where to turn for the protection of law. The answer is. There is no protection of law anymore. There is no prosecution of wrongdoing and there is no defense for being politically incorrect. It's all going to be breaking off and floating away like a bridge in a flood.

Dismantling your library and selling your history, political, and economic books because they point only to ashes?

Have the Visigoths crashed the gates?

May I interest you in a pop-up book instead? They are delightful and you can make them say whatever you want.

For instance, I'm developing ideas for a magnum opus. It is falling into line by itself it seems and it is also receiving cosmic confirmation. Today I encountered an item about lyme ticks and deer that mentioned no delight with children at the edge of bucolic woods (woodsy woods), and that is the idea of the story, a playground at the edge of woods, then each page is an increasingly menacing adventure, determined by what I end up having at the end of the project, arrange the pages cutest to meanest back to cutest, and the item I read earlier this morning not only cosmically confirmed the idea it also gave me a page, deer ticks. Ticks with deer antlers. Running through the woods. Horrors! That would be one page.

So may I suggest not dismantling the shelves just yet.

I believe I have one of the best libraries of all, mainly for the reasons you mention.

I don't think, in the end, that this is really very much about federalism, except as a steppingstone. This is a case about rights. Even though there's no heightening of the level of scrutiny, the Court aggressively characterizes the government's purported legitimate interests from the rights claimants' point of view and sees nothing but disparagement, denigration, and stigma.

I am trying to understand this. Do you mean that the Court sees DOMA as an individual rights case, and that the states' rights and powers are therefore trumped?

It was only about heterosexual marriage when we acknowledged and appreciated evolutionary fitness. With the selective rejection of evolutionary principles (i.e. normalization of dysfunctional behaviors) as inconvenient to select individuals' lifestyles, it is now a requirement of the activists and their patrons to support universal unions, irrespective of numbers, forms, and kinds. Anything less demonstrates a unique and unprecedented bigotry conducted through emotional and legal extortion.

As for equal protection, the Court must note that a human life evolves from conception to death. If it intends to remain objective, and consistent, then it must address the judicial normalization of premeditated murder, without cause and without due process, of select human lives for money, welfare, and convenience when they are deemed unwanted by their legal and natural guardian(s).

Full faith and credit has never required a state to recognize the official act of another state that offends the public policy of the forum state.

DOMA was not required on this gorund. If it was defensive, it was to preempt federal legislation that would require all states to recognize gay marriage as legal and binding. That legislation, assuming it would ever become law, would tee up the federalism question that the court identified.

So you feel it was all politics when the VRA got altered yesterday too?

Everything in SCOTUS is about politics and agendas and has been since John Marshall.

wyo sis said...

I am so discouraged. Pogo and Eric and many others and I are wondering where to turn for the protection of law. The answer is. There is no protection of law anymore. There is no prosecution of wrongdoing and there is no defense for being politically incorrect. It's all going to be breaking off and floating away like a bridge in a flood.

So does this mean that brother can marry sister? Certainly the state would have a legitimate interest in preventing the couple from breeding, but the case has apparently been made that marriage has nothing to do with procreation, as a purely non-procreative relationship now qualifies as marriage.

And what compelling interest does the state have to deny bigamists their dignity?

These aren't slippery slope questions, and I'm not trying to slander homosexuals by comparing them to incestuous cretins or those filthy Mormons. We're past the slippery slope now. These are now legitimate questions (which I seem to remember hearing would never, ever come up).

Once same sex marriage is the law of the land, mandated and protected by the SCOTUS, expect to see in short order: 1) marriage of two brothers of the same parents, 2) marriage of a father to his 16 year old (age of consent in WA)daughter, 3) a growing consensus that the incest taboo is outdated, nudged along by Hollywood, 4)the courts refusing to prosecute parents who have sex with their teenage children

So what the majority ruled was that if our elected representatives decide that what you're doing isn't valuable enough to entitle you to benefits we give to people who's actions ARE valuable, 5 black robed thugs reserve the right to overrule them, and us, based on nothing other than the thugs personal beliefs?

Or is this a generally applicable rule? Can I demand that I get every "green" tax break, without actually doing the things the break requires, one the grounds that the Democrats who passed that break didn't give it to me because they don't like my behavior?

Chip, even the tick itself could be come increasingly menacing and then calm. Starting with minding its own business, to spying a target, to surreptitiuously dropping and attaching, to digging in, to feeding and becoming engorged grossly BLOATED WITH BLOOD, to discovery by the host, to a fight for removal, to antiseptic disposal, to first aid, and then healing for the host.

I am so discouraged. Pogo and Eric and many others and I are wondering where to turn for the protection of law. The answer is. There is no protection of law anymore. There is no prosecution of wrongdoing and there is no defense for being politically incorrect.

Exactly right.

What they fail to realize is that fashions change. What is politically correct today may be anathema tomorrow.

What we have to hope is that Nature will take it's course and over time there will be a swing of the pendulum.

If you cant distinguish between people serving at the top, like Erick Holder and a racketeer, the content of the laws, their intent, and all the hoops and rigmarole we invent, to keep up the illusion of fairness is bullshit.

Is this what it has come to, "DOMA was mean to homosexuals?" [sticks out lower lip in a pout] so there fore because it was a meanie head paper, because it hurt their feelings? I'm with Pogo on this. The USA is over. Sorry, but it is, what it once was is no more. The Constitution is as dead as the references made against it in majority or dissent, meaning nothing. The vote means nothing anymore. It is all now officially Kabuki.

Can someone explain to us why anything in this ruling prevents polygamy?

It doesn't. Once Lawrence v. Texas was struck down, this all happened in it's wake. This is the consequence of that decision. There was no other place to go. We all saw it coming and there was an attempt to stop it. Today, the court basically has said that you are an enemy of humanity if you oppose SSM and homosexuality.

My wife is a retired federal employee. She cannot receive Social Security spousal benefits because of the Government Pension Offset(GPO). Is it now permissible for her to challenge the the GPO because it is the result of a "bare Congressional desire to harm an unpopular group?"

The demand that religions offer the sacrament of marriage to same sex couples is on the agenda and will be forced upon us sooner rather than later.

I would never expect lawyers or the law to protect our religious freedom.

If you think they will you are kidding yourself.

No SSM'ers will demand that churches marry them and if those churches deny them that sacrament under religious and theological grounds, well guess what? They will be sued into oblivion and either made to lock up their doors, be forced to marry them, or give up their tax exempt status for political proselytizing. Watch.

Traditional marriage existed long before gays decided to fight for marriage rights. Therefore its kind of hard to argue that DOMA which argues that marriage should be as its always been is somehow meant as a slight to gays. Gays may be hurt by it, but that doesn't mean it was sole intent of congress. At the same time this was going on, many states were also allowing for civil unions that had all the rote tons of marriage.Meaning, defending traditional marriage while at the same time giving gays access to rights they were somehow denied (according to them).

So does this mean that brother can marry sister? Certainly the state would have a legitimate interest in preventing the couple from breeding, but the case has apparently been made that marriage has nothing to do with procreation, as a purely non-procreative relationship now qualifies as marriage.

And what compelling interest does the state have to deny bigamists their dignity?

These aren't slippery slope questions, and I'm not trying to slander homosexuals by comparing them to incestuous cretins or those filthy Mormons. We're past the slippery slope now. These are now legitimate questions (which I seem to remember hearing would never, ever come up).

Even though this might be rare or uncommon, but what's to stop homosexual identical twins from carrying on a homosexual incestuous relationship and wanting to get married?

"Even though this might be rare or uncommon, but what's to stop homosexual identical twins from carrying on a homosexual incestuous relationship and wanting to get married?"

The answer is nothing. That does not concern me as much though as the fact that, now, we cannot stop them from adopting children. For me, my opposition to the full court press behind SSM was never about the couple. My opposition was about the children. Now, there's nothing to stop them from adopting and raising children.

time to fix the tax code so no benefit derives from marriage, only a personal exemption for yourself and dependents. As one of the foundations of tax preference for marriage was the raising of children to perpetuate society, you'll only get it when you have dependents.

Even though this might be rare or uncommon, but what's to stop homosexual identical twins from carrying on a homosexual incestuous relationship and wanting to get married?

I bet you are only person on earth who has ever thought of this. Weirdo!

No, we're inundated with this stuff daily.

Pull your head out of your ass and look at what your puppetmasters are pushing toward.

Polygamy - actually complex marriage - multiple men and women, incest, and bestiality are no longer icky according to the brahmins at our finest (ha!) universities, and pederasty has been on the homosexual agenda forever.

(and Palladian, when he comes here with his standard idiotic rebuttal, might want to tell us all the last time GLAAD or Human Rights Campaign denounced NAMBLA)

Politically today was a disaster for the Republicans. It is going to keep the pubbies tied to the south and to other bigots in their party. Democrats are solidly on the side of freedom. Republicans will have to continue to mollify their bigoted base while trying not to turn off the rest of the country. Good luck with that.

The Justices do indeed read the newspapers. They have caught on to the popular view.

Thou Shalt Not Disparage Lest Thou Hurtest Some Feelings.

Fortunately for me, my personal feelings are not hurt by gay marriage. I do find it interesting that the supposedly most cutting edge of the self defined groups in our society is battling for access to a mainstream but increasingly passé institution like marriage. I wonder if, other than for the government benefits, most gays really care about being married, beyond the social validation it gives. Not that social validation isn't an adequate reason, but it remains to be seen how many gay couples will avail themselves of marriage over the longer run.

Marriage has economic benefits but also detriments, like higher tax brackets for some people, judicially imposed financial obligations in divorce and the general obligation to take care of another person who may be unable or willing to engage in self financial care. And these are only some of the snares of marriage.

Those who have strong and sincere religious feelings that marriage is between a man and a woman may be feeling disparaged, denigrated and stigmatized today. The same for the true social conservative. A long, deep, respectable and very successful social norm has been overturned in a very short period of time. The real dagger is the court's assumption that legislation seeking to uphold this tradition was rooted in bigotry. To a large extent, it was not. It was a respectable societal norm, sanctioned by most mainstream religions Christian and otherwise, which has been the most stable element of human society since human society was invented.

I will not live long enough to learn whether this is all a wave of fashion that will recede, or a fundamental change that will persist.

Finally, if I were a black person, i might wonder what the hell ever happened to my cause. How did we blacks suddenly get so low on the totem pole of injustice, below all the white yuppies who keep inventing new rights and new causes. Men marrying men (and women women). Damn, preacher, you better explain that one to us.

Politically today was a disaster for the Republicans. It is going to keep the pubbies tied to the south and to other bigots in their party. Democrats are solidly on the side of freedom. Republicans will have to continue to mollify their bigoted base while trying not to turn off the rest of the country. Good luck with that.

I will argue that human-animal marriages nor marriage to minors will not be upheld because neither the animal nor the minor will be considered to be able to give consent (though the way things are going. . . .)

OTOH, I see nothing in this decision that can't be transferred directly to anti-polygamy laws. And, oh, the howling that will ensue from the erstwhile Defenders of Marriage Rights. . . .

These things are the neo-rococo excesses of an overly-wealthy society.

The wealth hides the fact that the foundations of society are being shattered.

It's all like the couple who tinker endlessly about the shape of the crown molding, and the plush on the draperies, all the time ignoring that the water has destroyed the foundation and the termites the load bearing walls.

Althouse said:"I don't think, in the end, that this is really very much about federalism, except as a steppingstone. This is a case about rights. Even though there's no heightening of the level of scrutiny, the Court aggressively characterizes the government's purported legitimate interests from the rights claimants' point of view and sees nothing but disparagement, denigration, and stigma."

Nonsense. It had nothing to do with disparagement stigma etc. DOMA was proposed by Bill Clinton because he wanted to block a constitutional amendment which had a strong possibility of success which would have defined marriage in the traditional man/woman language.

The language of rights which you are using sounds righteous, but it is also nonsense unless it is based on some logical foundation. For the left, the meaning of the word rights is fungible just like the meaning of the word marriage is fungible. Once you begin to change the meaning of words language becomes a form of propaganda designed to prevent thoughts which the ruling class deem unacceptable.

And if history is any guide, the wind starts blowing at this point in a societies' ripening and rotting, and when the storm come only the strong structures survive.

Which, by the way, is exactly what heterosexual marriage has done - survived time and time again, for thousands of years.

For all the left's obeisance to science and rationality, they have yet to explain why, in their thousands of years of Darwinian mix and shuffle - why has heterosexual marriage been the only form of coupling to survive and thrive.

Do secularist really think that, in the social evolutionary "progress" they can't ever see their way past, that homosexuality in all its forms has never appeared on the human stage until now?

marriage is an ancient practice,an ancient custom, shaped by tradition, myth, story and social expectations all as old as civilization,for which, it is the foundation. It arises from the natural biological sexual complementarity of woman and man, and formalizes the possibility of procreation, the renewal of life and the continuance of civilization.

Can't say I'm really impressed with the logic of this ruling, rather than seeing it as the leading edge of a rights-based ideology of its own, activism finding a foothold in law, a worldview with its own prejudices, enforcers, and limitations.

Jay Retread said..."It is going to keep the pubbies tied to the south and to other bigots in their party. Democrats are solidly on the side of freedom. Republicans will have to continue to mollify their bigoted base while trying not to turn off the rest of the country. Good luck with that."

Mr. Retread, I wish you meant your comment as ironic, then it wouldn't reflect so badly on you. I can't imagine a bigger bigot than someone who will trash an entire region of the country like you have just done.

May I interest you in a pop-up book instead? They are delightful and you can make them say whatever you want.

When I was little (I was born in 1968), one of my favorite books was a pop-up book about the Apollo program. I still vividly recall the pop-up of the very weird looking lunar lander.

That nation is gone. Some of the things lost are best left in the past, but we've thrown out most of the good stuff too. What we have left is great technical wizardry, but almost entirely on the side of computing and rendered images.

It's not too surprising we can't get to the moon anymore. It's a damned shame we can't even get into low earth orbit anymore without begging the Russians (the RUSSIANS! What would Bobby Fischer say?!) for a lift.

On the other hand, we now get to treat butt-fucking with all the legal respect of the right to free speech. Well, we don't really respect free speech anymore, which is why the government is spying on everyone. But you get the idea.

I also love the idea that Obama isn't going to force churches to carry out gay marriages - yet.

For all the left's obeisance to science and rationality, they have yet to explain why, in their thousands of years of Darwinian mix and shuffle - why has heterosexual marriage been the only form of coupling to survive and thrive.

So polygamy counts as real marriage, then? That will be handy to know when the inevitable Supreme Court case comes up. :)

The "argument from history" is pretty silly in any case. For example, the only profession that has survived and thrived throughout all of human history has been "farmer" -- but that isn't an argument that "farmer" is the only legitimate occupation, or that we would be better off if we forced more people to be farmers, or that farmers are entitled to special rights other professions don't get. Farmers were once common because they needed to be; now they are not, because they don't need to be.

It's not too surprising we can't get to the moon anymore. It's a damned shame we can't even get into low earth orbit anymore without begging the Russians (the RUSSIANS! What would Bobby Fischer say?!) for a lift.

Unless you're speaking on behalf of NASA, that sentence is false. There are private companies sending people into low earth orbit today. You should be able to buy a ticket on one in another year or two.

Rather than being a nation that can't achieve what the government did 50 years ago, we are a nation where private citizens can do, for a tiny fraction of the cost, what the government did 50 years ago.

That's bad news for lefties and National Greatness/Big Government conservatives, of course. But it certainly isn't bad for American technical known-how. :)

It's times like this, when Islam looks a lot more appealing to a lot more people.

No, not at all. But it would be nice if the native WASP culture would reassert its prerogatives again. But it would have to find them first, as the rot started with that group before metastasizing and spreading to the rest of the body politic.

edutcher, I'm sure there was fraud, but there were also several million missing white voters. Analysis of election data correlated with census data is starting to come out. Those missing votes correlate very highly with counties that Ross Perot did very well in all the way back in 1992. (!!) Perot voters seem to have been equally turned off by the socialism of Obama and the heavily elitist heavily pro-Wall Street Romney. No one gave voice to the kind of populism that appeals to such voters, who were largely northern and Midwestern rural folks.

In other words, a lot of people just dropped out because it was a choice between a giant anti-American horse's ass and a giant ant-American horse's ass.

Unless you're speaking on behalf of NASA, that sentence is false. There are private companies sending people into low earth orbit today. You should be able to buy a ticket on one in another year or two.

From the rest of the comments in the thread, you would think the decision endorsed same-sex marriage. It did not. It's an enumerated powers / 10th amendment decision.

The marriage laws in this country have always been a state by state affair. DOMA tried to snatch that traditional item of state sovereignty away with no basis in Congress' enumerated powers. The SCOTUS just restored each state's prerogative to have their own marriage laws which the Federal Government would respect.

I wish all three branches of government would better respect the Constitutional limits on Federal power as this decision does.

If they are adopted, yes in a few jurisdictions. (I believe Wisconsin, for one, allows marriage between non-biologically related step-siblings.)

18 states (or so) allow first cousins to marry. 7 states allow this under certain exceptions. The other half of the states prohibit this, but recognize those marriages legally entered into in those states where it is legal.

You could of written DOMA without even stating anything about same-sex couples. It was written almost to ensure to would end up being unconstitutional, by referring to same-sex marriage more in the law then just stating what marriage is.

Just say for the purposes for federal public policy, marriage is defined as one man and one woman, to further promote the stabilization of the family, because every child has a natural right mother and father.

As a public service, I would like to provide for the DOMA defenders, a public apology graciously provided for them by Archie Leach (John Cleese) to Otto (Kevin Kline) in A Fish Called Wanda.

Archie: "I apologize unreservedly."Otto: "You take it back?"Archie: "I do. I offer a complete and utter retraction. The imputation was totally without basis in fact, and was in no way fair comment, and was motivated purely by malice, and I deeply regret any distress that my comments may have caused you or your family, and I hereby undertake not to repeat any such slander at any time in the future."

Learn it. Memorize it. When the courts have found you guilty of political incorrectness, only an abject apology of this sort can offer even the slightest chance for redemption.

Fascinating that a court bending over backwards was finding reasons to uphold obamacare, even though its writers denied those rationalization s. But DOMA does not deserve the same search for reasonable rationalization. Wonder because in thi case the bending over direction is reversed.

What a croc of shit! They ruled they way they wanted to rule and put out this drivel as the so-called rationale. They don't give a shit about this country. They don't give a shit about our values. They only care about their inside the beltway ivy league brain dead bullshit. Their personal views trump the constitution. Well done.

The constitution doesn't mean shit. It's just toilet paper now. We can't even use our own god damn judgment in determining what the state recognizes as a marriage. We sign the petitions, raise they money and vote - and WIN...not once, but twice! and the Supreme Cowards of the US say "Sorry, we know better!" well, fuck them. They don't mean shit. the constitution doesn't mean shit and this country doesn't mean shit.

Real traditional values will never get a fair hearing in this country because the perverted elitist fucks are in charge. They don't hold our values. They detest our values. We should detest theirs and them. There are no more politics in this country. Just grab what you can, hold on as long as you can, and fuck everyone else. It doesn't mean anything. Voting doesn't mean anything. What's the point? It's never over until the leftards win.

Mark Jones offered: Archie: "I do. I offer a complete and utter retraction. The imputation was totally without basis in fact, and was in no way fair comment, and was motivated purely by malice, and I deeply regret any distress that my comments may have caused you or your family, and I hereby undertake not to repeat any such slander at any time in the future."

It would be neat to hear Andrew Sullivan say something like that to Sarah Palin one day.

"What a croc of shit! They ruled they way they wanted to rule and put out this drivel as the so-called rationale. They don't give a shit about this country. They don't give a shit about our values. They only care about their inside the beltway ivy league brain dead bullshit. Their personal views trump the constitution. Well done."

Gee someone actually gets it. Now if we could only persuade the 300 million other dumb clucks we might change things.

I don't know, I'm not sure that's the hill I want to die on. When they came for Paula Deen, I did not object, because abject apologies for non-existent offenses kind of stick in my craw. But it is sure starting to look like it's time to pick a hill.